A defunct mining company that went out of business in 2016 has been fined $1.3 million under the Ontario Occupational Health and Safety Act after being found guilty on six charges. This is one of the largest OHSA fines in Ontario history. However, it should be noted that the company, First Nickel Inc., did not defend this Ministry of Labour prosecution.

The fine included:

-$250,000 for failing to ensure that part of the underground mine was kept free of accumulations or flow of water

-$350,000 for failing develop a quality control program to ensure that ground support systems were properly installed and remained effective

-$300,000 for failing to ensure that a written record was made by the shift supervisor about the dangerous condition

-$100,000 for failing to ensure that a written report was provided to the Ministry of Labour where a fuse, a detonator or an explosive is found to be defective

-$150,000 for failing to develop a written program to provide for the timely communication of information between workers and supervisors in the mine respecting ground stability, ground movement, falls of ground, ground monitoring equipment and emergencies

-$150,000 for failing to examine the ground conditions of the workplace for dangers and hazards and, if required, made safe

The MOL notes, in its press release, that the mine closed in 2015, the company was not represented in court, and the company went out of business in 2016.

A mental health nurse whose critical comments, in a closed-door union meeting, about workplace violence in hospitals were later published online by a local newspaper and in a union press release without her knowledge or permission, has been reinstated by an arbitrator with back pay.

The comments in the union press release that were attributed to the nurse included:

“Staff at hospitals with forensic psychiatric units or those with medium security units where patients come direct from area prisons are “easy targets for violence” on understaffed wards. Many of these patients are strong and aggressive young offenders and nurses are told that “the violence is part of the work we do. Nurses are often blamed directly by the employer for the assaults that are directed at them. Or supervisors tell nurses ‘thanks for taking one for the team’. Often nurses face reprisals for reporting incidents of violence and when we demand increased security matters,’ says Sue McIntyre a North Bay psychiatric RPN.”

When her comments were published online by the local paper, the nurse intervened and had the comments taken down within three hours of being posted. The employer concluded that the comments were about the hospital and its staff and patients, not general comments about hospitals, and that the comments were false and had harmed the hospital’s reputation. It dismissed her, claiming just cause.

The union grieved the dismissal. The arbitrator decided that dismissal was excessive. A one-week suspension was more appropriate. The comments were made at a legitimate closed-door trade union meeting about workplace safety. Workplace violence was an important issue in the hospital sector. Media were not present or invited. The nurse did not intend the comments to be public. She was given very little time to think about and prepare her comments. The union press release and newspaper article were published without her knowledge or consent. She took prompt steps to have any comments attributed to her removed from those documents.

The arbitrator decided, however, that it was not entirely unforeseeable that the comments would become public, so she must bear some responsibility for the words that she spoke. Also, the comments were not truthful to the extent that they were comments about the hospital at which she worked. She had previous discipline on her record. In the circumstances, a one-week suspension was appropriate, and the employer was ordered to reinstate the nurse with back-pay.

A judge in a recent wrongful dismissal action dismissed the plaintiff’s allegation that he was dismissed after making suggestions about improvements to the employer’s safety systems. The employee was a relatively short term employee (25 months), working as a Control Systems Specialist. His duties included designing, implementing and monitoring various control systems for machines manufactured by the employer.

The plaintiff testified that the employer had been involved in a fatality in California, involving one of its machines. As a result, the plaintiff claimed that he became concerned about the employer’s future liability and took it upon himself to do some research regarding safety systems. He sent an email to his general manager making suggestions, including a redesign of the system and a rewrite of the safety manual. The general manager had replied to say that the employer was looking for an expert, would be reviewing training methods, and that he was open to further discussion. He also stated that the employer’s goal was not to escape liability but rather, to “build machines that do not hurt people.” The day after this email exchange, the plaintiff was called into a meeting and terminated without cause. He was not given a reason and when he asked, he was told that the employer’s counsel had instructed it not to give a reason. He was escorted out of the office in a civil manner. The plaintiff followed up a few days later, again asking for a reason for his dismissal but the employer did not respond.

At trial, the plaintiff’s theory was that he was dismissed because he was questioning the employer’s safety systems. Other employees had told him he “wasn’t a good fit.” The employer denied that the reason for the plaintiff’s dismissal was his concern with the safety system. The general manager testified that the employer had been experiencing some financial challenges that resulted in 12 employees being dismissed, managers taking a salary cut, overtime hours being lost, and several projects being in jeopardy. He claimed that the timing of the dismissal the day after the plaintiff’s emails about his perceived safety issues was a coincidence and that the plaintiff was dismissed because he was not a good fit.

In addition to damages for reasonable notice of termination, the plaintiff claimed he was entitled to aggravated and punitive damages as a result of the manner in which he was dismissed. His evidence was largely related to the employer’s refusal to give him a reason for the dismissal and the timing with relation to his emails about the safety concerns. The judge found that the plaintiff’s theories were not supported by the evidence and were insufficient to justify an award of aggravated or punitive damages. The judge held that the employer’s conduct was not malicious and high-handed so as to warrant additional damages and dismissed that aspect of the plaintiff’s claim.

An appeal court has upheld the firing of a unionized millwright who was caught with a small amount of marijuana in his jeans pocket during screening prior to boarding a helicopter that would transport him and other employees to an offshore platform. The employer had a policy prohibiting possession of an “illegal drug”, including marijuana, “while on company facility or while performing company business”.

The employee, who was employed on a “call-in” or casual basis, claimed that he was “in disbelief that it was there” and that he “did not know how it got in his pocket”. The labour arbitrator found that the employee likely knew that he possessed marijuana (noting that he did not protest “loud and long” that the marijuana was not his or that he had no knowledge of his having possessed it) but had forgotten it and had not carefully checked his pockets. The arbitrator had upheld the employer’s decision to dismiss the employee, but a judge of the Newfoundland Supreme Court had set that decision aside.

The Newfoundland and Labrador Court of Appeal restored the arbitrator’s decision, stating:

“To avoid disciplinary action, the employee was required to establish that he had taken all reasonable care to ensure that he did not breach the Policy by having possession of marihuana. The arbitrator reviewed the circumstances and the explanation provided by the grievor and concluded that he had not satisfied this onus. Rather, the arbitrator found that the grievor more probably than not knew about the marihuana in his pocket, but had forgotten it was there and had not carefully checked his pockets before entering the screening area . . . The employee’s actions did not establish that he had taken all reasonable care to ensure that he did not breach the Policy. He did not meet the standard of the reasonable person in similar circumstances.”

A man who requested that a municipal pool and fitness facility provide him with a “young, hot female trainer like” (name redacted), and who earlier had swam up to three nine-year-old boys playing on a floating raft and engaged in conversation with them, was not discriminated against because of a physical or mental disability when the facility banned him.

The man filed a complaint with the British Columbia Human Rights Tribunal asserting that the facility had discriminated against him because of a disability (hypoglycemia, which he said affected his cognition in these instances, and depression).

The Tribunal dismissed his complaint. The Tribunal noted that the complainant had provided no medical evidence that hypoglycemia affected his conduct. At the time of the events, the complainant gave no indication that he was experiencing symptoms of hypoglycemia. Also, nothing in the complainant’s evidence suggested that his disabilities, either physical or mental, were known or readily observable, and therefore the facility had no “duty to inquire” into whether he had a mental disability that had influenced his actions.

The Tribunal stated that the complainant’s email setting out his request for a female trainer was “reflective of attitudes that found expression in a bygone era and that are inappropriate, particularly in the circumstances of this case. The Complainant’s email does not reflect an uncontrollable comment blurted out, but rather appears to reflect a deliberate train of thought.”

The Ontario Ministry of Labour is consulting on proposed changes to the safety regulation that applies to most businesses in Ontario: the Industrial Establishments regulation under the Occupational Health and Safety Act. Offices, factories, shops and restaurants – and many other workplaces – are caught by this regulation.

One proposed change is particularly notable: it would require employers to assess the risks of hazards that arise from the workplace, at least annually, and provide the results in writing to the joint health and safety committee. The risk assessment requirement would be an “if you do nothing, you will be in breach” obligation, which requires employers to take a positive step in order to comply. That requirement would not apply to workplaces at which fewer than 20 workers are regularly employed.

The amendments would also require employers to develop and maintain written measures to control the risks identified in the risk assessment and, where practicable, eliminate the hazards. There are relatively few requirements on industrial employers under the OHSA to put things in writing, but this will be one such requirement.

The risk assessment would open up a new liability risk for Ontario employers: employers who neglect to do the risk assessment may be charged and fined for failing to do it; employers who conduct the risk assessment may have the MOL argue that they did not adequately address the risks identified. Mining employers already have similar risk assessment obligations.

The MOL, on its website, states that the government is proposing a number of other amendments to the Industrial Establishment regulations:

“• Update existing requirements regarding guardrails, fall protection, protection against drowning, signallers, eyewash fountains and deluge showers to reflect current workplace practices, processes and technologies; . . .
• Add new requirements for scaffolds and suspended access equipment, similar to existing requirements currently set out in O. Reg. 213/91 (Construction Projects);
• Add new, specific requirements for storage racks and for high visibility safety apparel for signallers to improve worker health and safety and to improve clarity and transparency regarding compliance expectations; and
• Make additional amendments for clarification and to increase alignment between OHSA regulations.”

The MOL is receiving comments on these proposed new requirements until April 6, 2018. The comment link is at the bottom of the MOL’s web page on the proposed amendments.

The Court of Appeal for Ontario has upheld the criminal negligence (“Bill C-45”) conviction and 3 1/2 year jail term imposed on Vadim Kazenelson, the Project Manager for Metron Construction. The charges arose from an incident in which four workers fell to their death and a fifth had permanent injuries after a swing stage collapsed. None of those workers was attached to a lifeline.

The trial judge had, in sentencing Mr. Kazenelson to 3 1/2 years in jail, stated that Mr. Kazenelson not only did nothing to rectify the dangerous situation, he permitted all six workers to board the swing stage together with their tools; he did so in circumstances where he had no information with respect to the capacity of the swing stage to safely bear the weight of the workers and their tools; and he “adverted to the risk, weighed it against Metron’s interest in keeping the work going, and decided to take a chance. That is a seriously aggravating circumstance in relation to the moral blameworthiness of his conduct.” Mr. Kazenelson was aware that there was a deadline for completing the work and that his boss was intent on meeting it.

The Court of Appeal for Ontario rejected Mr. Kazenelson’s arguments that he should not have been found guilty of criminal negligence. Mr. Kazenelson’s argument that the “approach of the trial judge stretches penal negligence too far” given that this was the first conviction of an individual supervisor under section 217.1 of the Criminal Code (which section was added by Bill C-45 in 2004) was rejected. The appeal court also rejected the argument that Mr. Kazenelson did not show “a wanton and reckless disregard for the workers”.

With respect to the jail sentence, the appeal court rejected the argument that Mr. Kazenelson’s jail term should be shortened because the other workers were “contributorily negligent”; the court agreed with the trial judge’s reasoning that such argument “would ignore the reality that a worker’s acceptance of dangerous working conditions is not always a truly voluntary choice. It would also tend to undermine the purpose of the duty imposed by s. 217.1 of the Criminal Code, which is to impose a legal obligation in relation to workplace safety on management.” The appeal court also rejected the argument that, because Mr. Kazenelson was a first-time offender, the trial judge placed too much emphasis on “general deterrence”.

This case has, and will continue to, send a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents, particularly accidents involving fatalities or serious permanent injuries.

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The legal doctrine of “absolute privilege” prevented an employee from complaining that his former employer’s lawsuit against him was in retaliation (reprisal) for the employee filing a previous safety-retaliation complaint against the same employer.

Sometime after it terminated the employee’s employment, the employer started a lawsuit against the employee alleging that he had taken confidential information belonging to the employer. The employee then brought a complaint to the Ontario Labour Relations Board (actually his second safety-reprisal complaint), alleging that the employer’s lawsuit was itself in retaliation for him bringing the previous safety-retaliation complaint and therefore that the employer’s lawsuit violated the Occupational Health and Safety Act and entitled him to damages.

The OLRB noted that the legal doctrine of “absolute privilege” is “rooted in the public policy concern for ensuring freedom of speech in the context of judicial and quasi-judicial proceedings”. That is, lawyers and parties should be free to draft and serve legal pleadings, asserting their legal position, without fear that the words used in such pleadings, or the fact that they commenced the legal proceedings, could themselves form the basis for a lawsuit against them.

The OLRB decided that, in this case, the starting of the confidential-information lawsuit against the employee was protected by absolute privilege, and therefore could not be used as the basis of a safety-retaliation complaint against the employer at the OLRB. As such, the employee’s OLRB complaint was dismissed.

The dramatic explosions at a propane facility in Toronto in 2008 resulted in the tragic death of one worker and damage to many nearby homes. An Ontario judge has now upheld a combined fine of more than $5.3 million, plus the 25% “Victim Fine Surcharge”, against Sunshine Propane Energy Group and a related company, and two corporate directors. We previously wrote about the trial decision and fines.

The appellants were found guilty, after a fourteen-day trial, of a total of seven charges under the Environmental Protection Act and Occupational Health and Safety Act.

With respect to the charge under the OHSA of failing to provide “information and instruction” to the worker, the court noted that the worker who died had only four to five months of experience at the company, and was effectively left in charge of the yard on the day of the explosions, which was “a position prohibited by his lack of education, experience and training”. The trial judge decided that the explosions were a foreseeable event given that an untrained employee had been left in charge, and the appeal court agreed. The appeal judge also agreed that the fact that the worker ran towards the explosions, instead of away from them, showed his lack of training.

The appeal judge also decided that the fines imposed were appropriate. The EPA fines of $5,020,000 (including $100,000 against each of the corporate directors) were unprecedented, but there were a number of “aggravating factors” including the “widespread damage and effects caused by the appellants’ reckless behaviour in conducting truck to truck transfers without licence and with full knowledge of the risk . . .” Also, “the magnitude of the event was unprecedented in Ontario”. The OHSA fines of $280,000 were also appropriate in the circumstances.

A trial judge was wrong to find a City guilty of Occupational Health and Safety Act charges solely because an accident had occurred in which a worker died. The trial court should have gone further and analyzed each charge.

The charges were filed against the City of St. John’s after a tragic accident on a road construction site that resulted in one worker dying after being hit by a car. There were seven charges against the City including failure to provide adequate training and failure to maintain adequate traffic control.

The trial judge had held that the mere fact of the car striking the employee was proof of the actus reus of the charges. The appeal court decided that that was wrong: the trial judge should have analyzed each charge to determine whether the prosecutor had called evidence to prove each element of the offence. The trial judge had wrongly focused on the consequences of the alleged breach of the OHSA (the accident and the worker’s death) rather than on “the identification and proof of the actual elements of each offence”.

This decision is a welcome reminder that occupational health and safety prosecutors cannot simply rely, in seeking to obtain a conviction on OHSA charges, on the fact that an accident took place. Instead, they must do the work of proving each charge.

The Canadian Law Blog Awards states, “Each year we select three practice dedicated blogs from larger law firms that deliver helpful commentary on a select business industry or legal challenge. Here are the publications that stood out in 2017” – and ours was one of the three.

We pride ourselves on bringing you timely updates on health and safety caselaw and other developments in Canada, and we plan to continue doing so in 2018.

Thank you for your support of this blog, and please keep reading! If you think we should cover any particular topics or cases in our blog posts in 2018, just let us know. We are always happy to hear from our readers.

The “accident as prima facie breach” principle has been before the court in several recent cases, often with some discrepancy in its application. The principle was again before an Alberta court recently in the context of an application for particulars.

The principle provides that in some cases, proof that an employee was injured in an accident while performing his or her employment duties proves the actus reus for an occupational health and safety (OHSA) “general duty” charge, as long as the necessary elements are proven beyond a reasonable doubt. The burden then shifts to the accused to establish a due diligence defence.

In this case, a worker was seriously injured in a workplace incident and the employer was charged with 8 counts. Count 1 of the Information was a “general duty” breach allegation stating that the employer had failed to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker, contrary to section 2(1)(a)(i) of the Occupational Health and Safety Act (Alberta). After receiving the Crown’s disclosure, the employer applied for particulars of Count 1 on the basis that there was information contained in the Crown disclosure which left the employer uncertain about what act or omission the Crown intended to rely on to sustain Count 1.

At the application hearing, the first issue before the court was whether the “accident as primafacie breach” principle for an OHSA general duty charge would preclude an order for particulars. The court reviewed the principle, noting that the case law had established that the “accident as prima facie breach” principle requires that in order for the Crown to prove the essential elements of an OHSA “general duty” charge beyond a reasonable doubt, the Crown must prove that:

there was an employee;

the employee was injured in an accident; and

the employee was performing his or her duties in the course of his or her employment when injured.

The court noted that the principle does not relieve the Crown of establishing beyond a reasonable doubt that the employer committed a wrongful act but rather, reflects that sometimes, proof of the consequence, that is, the accident, is sufficient to establish that a wrongful act was committed. However, the principle was not one that would apply in all cases as there may be some instances where the wrongful act by the employer cannot be inferred from the circumstances of the accident.

Requiring the Crown to provide particulars of the specific acts, omissions or breaches by the employer under Count 1 would transform those particulars into essential elements of the actus reus of the offence which the Crown would then need to prove beyond a reasonable doubt. The court found that this would generally be inconsistent with the principle applicable to an OHSA “general duty” charge and would place a far higher onus on the Crown.

In the case before it, it was known why the incident happened. A boom stick being held above the ground by a hook and sling held by a caterpillar tractor fell from the hook and sling, severely injuring the worker. As such, the court determined that it was appropriate to apply the “accident as prima facie breach” principle and thus the court was precluded from making an order for particulars of the acts, omissions or breaches by the employer for the Court 1 OHSA “general duty” charge.

The court then proceeded, in obiter, and in what results in a somewhat confusing decision, to find that if the court was wrong on the conclusion that the “accident as prima facie breach” principle precluded it from ordering particulars, then the court would have made an order for particulars as requested by the employer.

OHSA legislation in Alberta and Ontario is changing. The Ontario amendments (including maximum fines and the limitation period for laying charges) are already in effect, and the Alberta amendments (including mandatory joint work site health and safety committees and new duties and obligations for various parties) will come into force soon.

The Ministry of Labour can prosecute employers under the “general duty” clause of the Occupational Health and Safety Act even where the charges impose obligations that are greater than those set out in the regulations under the OHSA, the Ontario Court of Appeal has decided.

In this case, a trial and appeal justice had decided that the employer could not be found guilty of failing to provide guardrails around a temporary work platform. They reasoned that the applicable regulation under the OHSA (“Industrial Establishments”), which dealt with the issue of guardrails, did not require guardrails in this particular situation (a temporary work platform at a height of six feet). As such, the lower courts held that the MOL could not use the “general duty” requirement found in s. 25(2)(h) of the OHSA to impose obligations greater than those in the regulation.

The Ontario Court of Appeal disagreed, stating that regulations cannot be expected to anticipate the circumstances of all workplaces across Ontario. The key question in this case was whether the installation of guardrails was a reasonable precaution. The Court of Appeal held that the trial justice failed to address that point.

The court concluded, at paragraph 45:

It may not be possible for all risk to be eliminated from a workplace, as this court noted in Sheehan Truck, at para. 30, but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by s. 25(2)(h) in order to protect workers. The trial justice’s erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s. 25(2)(h) charge as laid.

Practically, one expects that MOL inspectors will consider using this decision to issue compliance orders – or charges – under the “general duty clause” even where the regulations deal with the specific safety issue at hand – such as guardrails or fall arrest – but do not apply in the particular case. For instance, MOL inspectors may issue compliance orders or charges for failing to provide guardrails around a temporary work platform that is only one foot high.

The appeal court allowed the appeal and ordered a new trial before a different justice.

A release, signed by a terminated employee, barred her complaint against her employer under occupational health and safety legislation, the Saskatchewan Court of Appeal has decided.

The employee was a nurse at a long-term care home. The employer dismissed her during the probationary period on the basis that she was “not suitable”. After getting legal advice, she signed a release in exchange for one month’s termination pay.

Less than a month after signing the release, she filed a complaint with the Occupational Health and Safety division of the Saskatchewan Ministry of Labour, alleging that prior to her termination, she had raised safety issues with management regarding bullying and unsafe staffing levels.

The court stated that OHS legislation is for the general benefit of employees, and that benefit should not be bargained away by a release or other agreement. However, once a “triggering events” occurs which provides a worker with the right to make a complaint under OHS legislation, that right becomes “personal” to the worker. Where a worker has given a release in respect of a personal right, the validity of the release must be reviewed. Also, for the release to be effective to bar the personal OHS complaint, the timing of signing of the release (before or after the personal OHS issue arose) must be examined.

In this case, the release was valid, and the personal OHS issue occurred before the release was signed. Therefore the employee was barred from advancing the OHS complaint. Her OHS complaint was dismissed.

Last week I wrote about the Ontario government’s plan to amend the Occupational Health and Safety Act to increase the maximum fine against corporations to $1.5 million per charge and against individuals – such as workers, supervisors and corporate directors – to $100,000 per charge.

Schedule 30 to Bill 177 would also amend the OHSA to impose a requirement on employers who do not own the workplace (such as employers who rent or lease all or part of the building or facility in which the employees work), to notify the Ministry of Labour if the joint health and safety committee or a health and safety representative has “identified potential structural inadequacies of a building, structure, or any part thereof, or any other part of a workplace, whether temporary or permanent, as a source of danger or hazard to workers”. This provision appears to be in response to the tragic mall collapse in Elliot Lake, Ontario in 2012.

The Bill would also allow the government to make a regulation requiring employers other than constructors or mining companies to notify the MOL if certain events, described in the applicable regulations, take place. In addition, the Bill would allow the government to make regulations that impose expanded accident reporting obligations on all employers under sections 51, 52 and 53 of the OHSA.

Lastly, the Bill gives the Deputy Minister of Labour authority to “establish written directives for use by inspectors respecting the interpretation, administration and enforcement of this Act and the regulations” which must be “consistent” with the OHSA and regulations and which MOL inspectors are required to follow. Interestingly, the Bill would not require employers to comply with those written directives, which would seem to permit employers to legally challenge the correctness of any interpretation set out in a written directive. We will have to wait to see what these written directives will look like.

The Ontario government has introduced legislation to triple the maximum fine under the Occupational Health and Safety Act against corporations to $1.5 million per charge, and quadruple the maximum fine against individual persons – such as workers, supervisors or directors – to $100,000 per charge.

The proposed amendments are, one might say, buried in Schedule 30 to Bill 177 that would implement certain “budget measures”. Perhaps for that reason, they have received very little attention. The Bill is called, “Stronger, Fairer Ontario Act (Budget Measures), 2017”.

The Bill received second reading on November 30th and has now been referred to the Standing Committee on Finance and Economic Affairs.

The Bill would also change the limitation period for laying charges under the OHSA, which is currently one year. The new limitation period would be the later of one year or “the day upon which an inspector becomes aware of the alleged offence”. That seems to mean that for accidents that employers are not required to report to the Ministry of Labour, the limitation period would continue running until the MOL finds out about the accident – which could be years later when an inspector drops in for an inspection of the workplace.

There are other proposed amendments to the OHSA, which we will write about next week. Stay tuned.

On November 27, 2017, the Government of Alberta introduced numerous proposed changes to Alberta’s Occupational Health and Safety Act and Workers’ Compensation Act. The proposed changes are contained in Bill 30: An Act to Protect the Health and Well-being of Working Albertans.

An Ontario Justice of the Peace has dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence.

In a July blog post, we reported on an earlier decision in this case. The OHSA charge against the company resulted from a fatality at a construction site after a “curb machine” overturned while being off-loaded from a “float” trailer, crushing a worker who later died. There were no witnesses to the accident. The charge against the company alleged that the curb machine was moved in a manner that endangered a worker.

The Court decided that the worker deviated from the standard practice that he and other workers had followed on previous occasions. There were no training courses available for the task in question, but the worker had in the past demonstrated his experience and ability to do that task. The employer was entitled to rely on the experience of a worker.

The court stated:

“(260) Despite the fact that [a company witness] could have presented better while on the witness stand, and could have established a more formalized training protocol within his company, his approach is one that is shared by many small to medium sized companies. These smaller concerns, in general typically have less resources to devote to formalized training (if any existed) but that does not necessarily mean that he was exposing his workers to foreseeable risks and dangers. In fact the court must be careful not to measure the practices of smaller concerns against those of larger companies with far more resources as it might lead to potential prejudice and be antithetical to the very noble purposes that the court (and the MOL) would wish to uphold.”

In summary, with respect to due diligence: the company had held regular safety meetings; there were no formal education courses that one could take on the loading / unloading task; the worker knew or should have known that what he was doing was unsafe; the company encouraged workers to discuss any safety concerns and provided a forum for those discussions at regularly scheduled meetings; the worker had successfully moved the curb machine 27 times; and there was no evidence that this was an industry wide safety issue.

The employer had therefore established due diligence. In the result, the charge was dismissed.

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